Volume 21, Edition 6

As we head into the 4th of July holiday I want to take a moment to thank all those you serve our country, whether in the military, the police or just generally in society to make the world a better and safer place. It is because of these people that we get the pleasure of celebrating the holiday (even if it does fall in the middle of the week). Thanks

Hopefully everything is quieting down as we move into the thick of summer. We hope you all find some time to relax and enjoy.

This month we report the following:

HOURS OF SERVICE.A new bill, the Honest Operators Undertake Road Safety or HOURS Act – was introduced to exempt drivers hauling livestock or agricultural products from the HOS rules within 150 air miles of the source of their load. It would exempt short-haul trucking operations from the ELD mandate if they operate exclusively within 150 air-miles of their reporting location and complete their work day in 14 hours. Additional components would require drivers to only verify the start and end time of their daily on-duty period

In related news the FMCSA issued some guidelines on the existing HOS regulations:

150-air-mile radius agricultural-commodity exemption

FMCSA is issuing Regulatory Guidance to Section 395.1. Questions 34, 35, 36, and 37 were added to clarify the exception with regard to:

1. Drivers operating unladen vehicles traveling either to pick up an agricultural commodity or returning from a delivery point;
2. Drivers engaged in trips beyond 150 air-miles from the source of the agricultural commodity;
3. Determining the “source” of agricultural commodities under the exemption; and
4. How the exemption applies when agricultural commodities are loaded at multiple sources during a trip.

Personal conveyance
FMCSA is replacing Question 26 of the regulatory guidance for Section 395.8. The revised text includes numerous examples to assist carriers and drivers in knowing whether the driver qualifies to operate the truck or bus for personal conveyance.

A driver may record time operating a CMV for personal conveyance (i.e., for personal use or reasons) as off-duty only when the driver is relieved from work and all responsibility for performing work by the motor carrier, regardless of whether the vehicle is laden. Previously, drivers could only log “off duty” for personal conveyance if the vehicle was unladen. The new guidance describes seven scenarios when the provision may be used and eight when it does not apply.

DRIVER TURNOVER. The ATA reports that driver turnover rate for large truckload carriers rose to 94 percent in the first quarter of 2018, which was a 6 percent increase from the previous quarter. According to figures released by the Federal Motor Carrier Safety Administration, there are 449,000 new entry-level CDL holders and 98,000 reinstatements every year. Turnover rate at small truckload carriers went down to 73 percent. With the high turnover and tight capacity it is important to look at the caliber of the driver stable when considering the risk to be underwritten

NATIONAL HIRING STANDARD The House of Representatives approved an amendment to the recently passed Federal Aviation Administration (FAA) reauthorization bill that establishes national standards for shippers and intermediaries to follow when hiring truckers to move freight. If this gets passed the shipper/broker or other transportation intermediary will only have to confirm that the motor carrier is properly licensed, has adequate insurance, and has a better than “unsatisfactory” rating We anticipate a big fight on this amendment.

MEDICAL EXAMINERS REGISTRY The website is moving toward functionality. Commercial motor vehicle drivers can now search for a certified medical examiner and verify that he or she is still on the national registry.

CURRENT CASES

Cargo

A motor carrier was allowed to invoke a tariff requirement that a claimant arbitrate any cargo loss. The District Court in New Jersey held the plaintiff’s suit should be dismissed and sent to arbitration. Alfa Adhesive v. A. Duie Pyle, 2018 WL 2317352

The Southern District of Florida dismissed an action against a motor carrier seeking recovery for damage to freight transported in interstate commerce. The Court concluded that while the shipment was transported from Missouri to Florida, there was no personal jurisdiction over the defendant hired to transport the shipment. High Tech v. Beth Trans., 2018 U.S. Dist LEXIS 96060

Preemption can be waived. The Southern District in California held that a motor carrier had waived the defense of preemption when it was not raised in an initial motion to dismiss. Interestingly the court held that the decision did not matter as it did not believe that state law claims were preempted by ICCTA. Meadowgate Technologies v. Fiasco Enterprises, 2018 WL 3032589

Whether payment of a cargo claim to one party constitutes an accord and satisfaction for any other party was held to be a question of fact in the District Court in Arizona. The Court also dismissed state law claims under the Carmack preemption doctrine. Hartford Fire Ins. Co. v. 3DL Design 2018 WL 2387930

As long as the plaintiff has sufficiently pled in the complaint that a defendant acted as a carrier, a motion to dismiss will not be granted in the Northern District of Illinois. The Court allowed the action to proceed and even allowed an alternative pleading of a state law claim, concluding that a non-carrier is not permitted to avoid liability for its own actions by claiming the only claim is one under Carmack. Codon Forsikring v. Conglobal, 2018 WL2560992

Western District of Louisiana upheld the preemptive effect of Carmack granting the plaintiff an opportunity to amend the complaint to assert a Carmack claim. Reclaimed Goods v. Frisard’s Trucking Co., 2018 WL 2771426.

AUTO

The Supreme Court of Wyoming reversed the summary judgment granted by the trial court to a motor carrier following a truck accident. The Court held that the plaintiff had shown that the act of parking a tractor-trailer on the shoulder of an interstate highway created a reasonable foreseeability of increased risk of injury and remanded the case back for a trial. There was a strong dissent to the opinion. Wood v. CRST, 2018 WL 2753132

An indemnity clause in a contract between a trucker and its customer was at issue in the Northern District of Illinois The Court held that the shipper’s demand for indemnity could not be readily resolved when there was a question of fact as to whether the indemnity agreement was conspicuous and whether the motor carrier was aware of the terms of the indemnity. Old Republic General Insurance Co. v. Martin Marieta Materials, Inc. 2018 WL 2417851

The complaint does not specifically have to allege a monetary demand to be removed to federal court. The Northern District in Alabama held that where the compensatory damages at issue exceeded $22,676.96, the plaintiff’s allegations seeking punitive damages against the trucking company would triple that number, establishing the requisite amount for jurisdiction. Hawes v. Bailey, 2018 WL 2445688

Carmack preemption for a personal injury claim! The District Court in Nebraska held that the plaintiff, who was injured when unloading cargo, was preempted from bringing any claim against the motor carrier for improper loading. The Court held that there was no separate and independent actionable harm that was distinct from the damage to the goods. Fergin v. Westrock Company, 2018 WL 3032551

Is he or isn’t he an employee? The District Court in Maryland held that an owner/operator under lease to a motor carrier was an employee for the purposes of a personal injury claim. The Court denied summary judgment to the motor carrier concluding that there was factual questions on whether there was logo liability or vicarious liability for the negligence of the driver. White v. Date Trucking, 2018 WL 2462921

Even if a claim is below the policy deductible an insurer can be subject to bad faith claim for failing to promptly settle a loss. The Western District of Kentucky held that when the insured had a $3 million deductible but had not registered as a “self-insurer” the primary insurer was still subject to a possible bad faith claim. As there was a question of fact on whether the insurer acted reasonably in its settlement efforts the motion for summary judgment was denied to the insurer. Morris v. Zurich American Ins. Co, 2018 WL 3025528

Figuring out who is at fault in multi-vehicle accidents is often difficult. The Southern District of Indiana granted summary judgment to one trucker following extended discovery which failed to support any claim that at least that the trucker was without fault. Kline v. Gemini Transp., 2018 U.S. Dist LEXIS 104440

A trucking company was denied summary judgment when the driver drove over the leg of a plaintiff who was sleeping under the truck. The Eastern District of Tennessee held that the driver could have a duty to verify that there was no potential hazard before he started moving the truck in the early hours of the morning. Steinberg v. Luedtke Trucking, 2018 WL 2449194

The 11th Circuit found that a motor carrier and its driver were insured under a policy issued to the trailer owner, regardless of whether they were held to be using the tractor. As the accident was held to arise out of the use of tractor and the trailer they were insured under the primary policy, then triggering coverage under the excess policy Great American Ins. Co. v. Moore Freight Service, 2018 WL 2752473

A motor carrier was successful in invoking the sudden emergency doctrine in the Court of Appeals in California. The Court held that a truck driver who had the right of way had no reason to anticipate road rage or that cars merging on a freeway would unsafely merge and jam on the brakes. Shiver v. Laramee, 2018 WL 2928178

A truck driver who was sued by another truck driver sought contribution from the plaintiff’s employer under the Illinois Joint Contribution Act for negligent training. The Court dismissed the claim, concluding that absent evidence that the trucking company had a requirement that it train and schedule a driver it owed no duty to do so. Ribartis v. CPC Logistics 2018 Il. App. (2d) 170574.

Plaintiff was unable to overturn a defense verdict in the 11th Circuit. Plaintiff argued that the police officer investigating the accident should have been permitted to testify as to his conclusion as to cause – which was that it was the fault of the driver. The court held that the officer was not an expert and that his opinion would have to be based upon specialized knowledge that only an admitted expert could testify about. His testimony was limited to his personal inspection. Cardona v. Mason & Dixon Lines, 2018 WL3017433

Worker’s Compensation

The 10th Circuit remanded an action by a driver seeking recovery against his employer’s parent company for injuries suffered on the job. The court held that the District Court failed to consider persona or identity of employer’s parent company to determine whether it was acting in role of employer and hence entitled to the exclusive remedy provision of the Oklahoma Administrative Workers’ Compensation Act which shielded employer’s stockholders from employee claims arising out of workplace injury if they possessed persona that was not independent from that of employer Odom v. Penske Truck Leasing Co., 2018 WL 3029161

A truck driver driving his bobtailing vehicle from his home was entitled to worker’s compensation benefits for injuries he suffered when driving home. The Supreme Court in Kentucky found that at the time he was injured his services qualified for the “service or benefit to employer” exception and were work related under the “traveling employee” exception. The court concluded that the injuries occurred during the “necessary and inevitable” act of returning from the journey he undertook on behalf of his employer. First Class Services v. Gural 2018 WL 2988129

The Texas Supreme Court refused to allow a worker’s compensation insurer to place a lien on proceeds received for a third party settlement. When the policy included an endorsement waiving carrier’s right to recover from third party sued by claimant it was held to also preclude carrier’s recovery from any settlement the third party paid to claimant. Wausau Underwriters Insurance Co. v. Wedel, 2018 WL 2750567

The Southern District in West Virginia denied summary judgment to a motor carrier who sought the protection of the exclusive remedy of the state’s workers compensation act. The Court addressed the various factors which can be shown to establish the steps necessary to show an “intent to cause injury” which would permit a direct suit against the employer, concluding that there were questions of fact which would require a jury’s input. Toth v. A&R Logistics 2018 WL 2976427

The Court of Appeals in Texas concluded that an employer was entitled to assert worker’s compensation as the exclusive remedy for the plaintiff’s injuries. As the plaintiff was unable to support a claim of gross negligence the suit was dismissed. Godines v. Precision Drilling Co., 2018 WL 2460302.

In a related case the Court also held that the land owner where the property was being moved owed no duty to the plaintiff and there was no evidence of gross negligence. Godines v. Precision Drilling Co., 2018 WL 2460303

Jury Verdicts

Cook County, Ilinois. Pedestrian struck by tractor trailer. The plaintiff alleged driver was negligent in failing to yield to a pedestrian, failing to signal his intention to make a right turn, and failing to come to a complete stop. The defendant denied liability and claimed the plaintiff was comparatively negligent. A jury determined the plaintiff was 35 percent negligent. The plaintiff was awarded damages in the total amount of $1,898,000. The award was reduced to $1,233,700 per the negligence apportionment Rodriguez v. Fore Transp., 2018 WL 3014328 (2018)

District Court of Oklahoma, Tulsa County. Police officer injured when struck by a CMV. At the time of the accident, driver reportedly was an employee of West Coast Transportation Inc. (WCT), owned by Horace Modlin, and Possum Trot Xpress (PTX), owned by Marvin Piguet, and working within the scope of his employment or agency with them. WCT filed a motion for summary judgment, arguing it had no involvement in the subject accident or control over driver. WCTthe driver’s wife The court granted summary judgment to WCT and dismissed the defendant from the case. The matter was resolved by a $95,000 settlement between plaintiff and remaining defensdant. Elias v. West Coast Transport, 2018 WL 2738844